Air Canada v. Toronto Port Authority Et Al, 2011 FCA 347 ... · Air Canada has not brought an application for judicial review of that decision. CanLII - 2011 FCA 347 (CanLII) B. Did

Federal Court ofAppeal

Cour d'appelfédérale

Air Canada v. Toronto Port Authority EtAl, 2011 FCA 347 (CanLII)

Date: 2011-12-12

Docket: A-355-10

URL: http://canlii.ca/t/fpf2w

Citation: Air Canada v. Toronto Port Authority Et Al, 2011 FCA 347 (CanLII),

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Date: 20111212Docket: A-355-10

Citation: 2011 FCA 347

CORAM: LÉTOURNEAU J.A.DAWSON J.A.STRATAS J.A.

BETWEEN:AIR CANADA

Appellantand

TORONTO PORT AUTHORITYand PORTER AIRLINES INC.

Respondents

Heard at Toronto, Ontario, on June 6, 2011.Judgment delivered at Ottawa, Ontario, on December12, 2011.

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CanLII - 2011 FCA 347 (CanLII)

Federal Court ofAppeal

Cour d'appelfédérale

REASONS FOR JUDGMENT BY:STRATAS J.A.REASONS CONCURRING IN THE RESULT BY: LÉTOURNEAU ANDDAWSON JJ.A.

Date: 20111212Docket: A-355-10

Citation: 2011 FCA 347

CORAM: LÉTOURNEAU J.A.DAWSON J.A.STRATAS J.A.

BETWEEN:AIR CANADA

Appellantand

TORONTO PORT AUTHORITYand PORTER AIRLINES INC.

Respondents

REASONS FOR JUDGMENT

STRATAS J.A.

[1] This is an appeal from the judgment of the Federal Court (per Justice Hughes):2010 FC 774 (CanLII), 2010 FC 774. The Federal Court dismissed two applicationsfor judicial review brought by Air Canada.

[2] Air Canada brought the two applications for judicial review in response to twobulletins issued by the Toronto Port Authority concerning the Billy Bishop TorontoCity Airport (the “City Airport”).The Toronto Port Authority manages and operatesthe City Airport.

[3] The Federal Court judge dismissed the applications for judicial review on anumber of grounds. Three of those grounds and the Federal Court judge’s rulings onthem were as follows:


● TheToronto Port Authority’s bulletins and its conduct described in thebulletins were not susceptible to judicial review. These matters did nottrigger rights on the part of Air Canada to bring a judicial review.

● In issuing the bulletins and in engaging in the conduct described in the bulletins, the Toronto Port Authority was not acting as a “federal board,commission or other tribunal.” Accordingly, judicial review was notavailable under the Federal Courts Act, R.S.C. 1985, c. F-7. The TorontoPort Authority’s conduct was private in nature, not public.

● AirCanada failed to establish that the bulletins and the conduct described in them offended duties of procedural fairness, were unreasonable, or weremotivated by an improper purpose.

[4] Air Canada now appeals to this Court from the dismissal of both of itsapplications for judicial review.

[5] Following oral argument, we reserved our decision in this appeal. Somewhatlater, the Supreme Court of Canada released its decision in Canada(Attorney General)v. Mavi, 2011 SCC 30 (CanLII), 2011 SCC 30, [2011] 2 S.C.R. 504. That decisionwas of potential significance to the second of these three grounds, and, in particular, tothe public-private distinction and whether the Toronto Port Authority’s conductdescribed in the bulletins is reviewable. Accordingly, we invited the parties to makefurther written submissions concerning that decision. We have now received theparties’ further written submissions and we have considered them.

[6] For the reasons set out below, I agree with the Federal Court judge’s dismissalof Air Canada’s applications for judicial review. Like the Federal Court judge, I findthat each of the above three grounds is fatal to the applications for judicial review. Itfollows that I would dismiss the appeal, with costs.

A. Basic facts

[7] The City Airport is located on Toronto Island. Once a quiet location frequentedmainly by small aircraft and hobby fliers, it is now a bustling commercial airport. Thistransformation was years in the making.

[8] Key to this transformation was an agreement, entered into in 1983 among theCity of Toronto, the Toronto Harbour Commissioners and the federal Minister ofTransport. Known colloquially as the Tripartite Agreement, it granted to the TorontoHarbour Commissioners, and later its successor, the Toronto Port Authority, a 50-yearlease for the City Airport and related facilities. Importantly, the Tripartite Agreementimposed an obligation on the Toronto Harbour Commissioners, and later the TorontoPort Authority, to regulate the number of takeoffs and landings in order to limit noisein the nearby residential neighbourhood.

[9] In 1990, Air Ontario, an Air Canada subsidiary, started operations at the CityAirport. Later, another Air Canada affiliate, Jazz, operated at the City Airport.


[10] In 1998, the Canada Marine Act, S.C. 1998, c. 10 became law. A year later,under its provisions, the Toronto Port Authority was established and letters patent wereissued to it: (1999) Canada Gazette Part I, vol. 133, no. 23 (supplement). These shallbe examined later in these reasons. Under subsection 7.2(j) of the letters patent, theToronto Port Authority was authorized to operate and manage the City Airport inaccordance with the Tripartite Agreement.

[11] By 2002, the Toronto Port Authority was operating at a loss. As we shall latersee, under the Canada Marine Act, the Toronto Port Authority was meant to befinancially self-sufficient. To remedy its financial situation, the Toronto Port Authoritytried to get Jazz to commit to the continuance and even the enhancement of itsoperations at the City Airport. In the meantime, the Toronto Port Authority started toenter into discussions with another proposed airline about operating at the City Airport.That airline was later known as Porter, operated by the respondent Porter Airlines Inc.

[12] As part of this investigation, the Toronto Port Authority and the airline that waslater to be known as Porter approached the Competition Bureau for advice aboutwhether Porter could ramp up operations considerably at the City Airport, taking 143of 167 takeoff and landing slots. The Competition Bureau responded. It defined therelevant market as including Lester B. PearsonInternational Airport, considered it to bea “close substitute” for the City Airport for Toronto air passengers, and noted AirCanada’s dominance at Pearson Airport. It concluded that capping Air Canada’stakeoff and landing slots at the City Airport at a low level and granting Porter anumber of takeoff and landing slots at the City Airport would be justified “as aninterim measure” to allow Porter to establish a viable new service at the City Airport.

[13] By 2004, Jazz reduced the number of locations served and the frequency offlights at the City Airport. By 2005, it ceased shuttle bus services to the ferry by whichpassengers travelled to and from the City Airport and it used only six takeoff andlanding slots at the City Airport.

[14] Mindful of the coming expiration of Jazz’s Commercial Carrier OperatingAgreement for the City Airport, the Toronto Port Authority proposed a new agreementwith Jazz. Jazz rejected the proposal and ceased all of its operations at the City Airportin 2006.

[15] Soon afterward, Porter announced the launch of its services from the CityAirport. It had already signed a Commercial Carrier Agreement with the Toronto PortAuthority during the previous year (2005). That agreement provided for an initialperiod during which Porter would receive a guaranteed number of takeoff and landingslots, following which Porter would be entitled to those slots on a “use it or lose it”basis. Porter was also entitled to participate “on a fair basis” concerning any additionalslots that might become available.

[16] After Porter announced its launch, Air Canada announced plans to reinstate itsservices at the City Airport. In addition, Air Canada’s affiliate, Jazz, started an actionin the Ontario Superior Court against the Toronto Port Authority claiming damages. Inthis action, Jazz alleged, among other things, that the Toronto Port Authority gavePorter a monopoly on terminal facilities and the vast majority of takeoff and landing


slots at the City Airport: see Amended Statement of Claim, paragraph 31, AppealBook, volume 14, pages 5746-5747. In 2006, Jazz also filed applications for judicialreview in the Federal Court, complaining of these same matters: see Notices ofApplication, Appeal Book, volume 15, pages 5894-5916 and 6189-6201. Later, Jazzdiscontinued or abandoned all of these proceedings.

[17] Porter’s flights from the City Airport steadily increased. Porter, through itsaffiliate City Centre Terminal Corp., invested $49 million into the City Airport’sinfrastructure, including the building of a new terminal and, later, expanding it. For thefirst time in more than two decades, the City Airport began to enjoy an operatingprofit.

[18] Later, in September, 2009, Air Canada expressed new interest in startingservice from the City Airport. At this time, the Toronto Port Authority was studyingthe possibility of allowing new takeoff and landing slots within the limits of theTripartite Agreement and was open to additional carriers operating at the City Airportand engaged in discussions with all of them, including Air Canada. The Toronto PortAuthority’s studies and discussions continued into 2010.

[19] On December 24, 2009 and April 9, 2010, the Toronto Port Authority issuedthe two bulletins that are the subject of Air Canada’s applications for judicial review inthis case. Also on April 9, 2010, unknown to Air Canada at the time, the Toronto PortAuthority and Porter entered into a new Commercial Carrier Operating Agreement,under which Porter’s existing landing slots were grandparented, with the result thatPorter received 157 of 202 available takeoff and landing slots at the City Airport.

[20] In its application for judicial review of the second bulletin, Air Canada seeksthe setting aside of Porter’s 2010 Commercial Carrier Operating Agreement, amongother things. However, as we shall see, that application for judicial review concerns theToronto Port Authority’s “decisions” evidenced in the second bulletin, not the TorontoPort Authority’s decision to enter into the 2010 Commercial Carrier OperatingAgreement with Porter. Air Canada has not brought an application for judicial reviewof that decision.


B. Did the Toronto Port Authority’s conduct described in the bulletins constituteadministrative action susceptible to judicial review?

[21] As mentioned above, before the Federal Court were two applications forjudicial review launched in response to the two bulletins. In response, the respondentssubmitted to the Federal Court that judicial review was not available because theToronto Port Authority had not made a “decision” or “order” within the meaning ofthe Federal Courts Act. All that the Toronto Port Authority had done was to issue twoinformation bulletins of a general nature. Air Canada disagreed with the respondentsand submitted to the Federal Court that there was such a “decision”or “order” and sojudicial review was available to it. The parties advanced substantially similarsubmissions in this Court.

[22] The Federal Court judge agreed with the respondents’ submissions, finding thatthat no “decision” or “order” was present before him because the Toronto PortAuthority’s bulletins “do not determine anything” (at paragraph 73).

[23] Although the Federal Court judge and the parties focused on whether a“decision” or “order” was present, I do not take them to be saying that there has to be a“decision” or an “order” before any sort of judicial review can be brought. That wouldbe incorrect.

[24] Subsection 18.1(1) of the Federal Courts Act provides that an application forjudicial review may be made by the Attorney General of Canada or by anyone directlyaffected by “the matter in respect of which relief is sought.” A “matter” that can besubject of judicial review includes not only a “decision or order,” but any matter inrespect of which a remedy may be available under section 18 of the Federal CourtsAct: Krause v. Canada, 1999 CanLII 9338 (FCA), [1999] 2 F.C. 476 (C.A.).Subsection 18.1(3) sheds further light on this, referring to relief for an “act or thing,” afailure, refusal or delay to do an “act or thing,” a “decision,” an “order” anda“proceeding.” Finally, the rules that govern applications for judicial review apply to“applications for judicial review of administrative action,” not just applications forjudicial review of “decisions or orders”: Rule 300 of the Federal Courts Rules.

[25] As far as “decisions” or “orders” are concerned, the only requirement is thatany application for judicial review of them must be made within 30 days after theywere first communicated: subsection 18.1(2) of the Federal Courts Act.

[26] Although the parties and the Federal Court judge focused on whether a“decision” or “order” was present, in substance they were addressing something morebasic: whether, in issuing the bulletins and in engaging in the conduct described in thebulletins, the Toronto Port Authority had done anything that triggered any rights on thepart of Air Canada to bring a judicial review.

[27] On this, I agree with the respondents’ submissions and the Federal Courtjudge’s holding: in issuing the bulletins and in engaging in the conduct described in thebulletins, the Toronto Port Authority did nothing to trigger rights on the part of AirCanada to bring a judicial review.


[28] The jurisprudence recognizes many situations where, by its nature orsubstance, an administrative body’s conduct does not trigger rights to bring a judicialreview.

[29] One such situation is where the conduct attacked in an application for judicialreview fails to affect legal rights, impose legal obligations, or cause prejudicial effects:Irving Shipbuilding Inc. v. Canada (Attorney General),2009 FCA 116 (CanLII), 2009FCA 116, [2010] 2 F.C.R. 488; Democracy Watch v. Conflict of Interest and EthicsCommission, 2009 FCA 15 (CanLII), 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149.

[30] The decided cases offer many illustrations of this situation: e.g., 1099065Ontario Inc. v. Canada (Minister of Public Safety and Emergency Preparedness),2008FCA 47 (CanLII), 2008 FCA 47, 375 N.R. 368 (an official’s letter proposing dates fora meeting);Philipps v. Canada (Librarian and Archivist), 2006 FC 1378 (CanLII),2006 FC 1378, [2007] 4 F.C.R. 11 (a courtesy letter written in reply to an applicationfor reconsideration); Rothmans, Benson & Hedges Inc. v. Minister of NationalRevenue, reflex, [1998] 2 C.T.C. 176, 148 F.T.R. 3 (T.D.) (an advance ruling thatconstitutes nothing more than a non-binding opinion).

[31] In this case, Air Canada issued two notices of application:

● The first seeks judicial review of “the December 24, 2009 decision…of the Toronto Port Authority…announcing a process…through which it intendsto award slots” at the City Airport. Like the Federal Court judge, I interpretthis as a judicial review of the December 24, 2009 bulletin issued by theToronto Port Authority and the conduct described in it.

● The second seeks judicial review of “the April 9, 2010 decision…of the Toronto Port Authority…announcing a Request for Proposals process…toallocate slots and otherwise grant access to commercial carriers seekingaccess” to the City Airport. Like the Federal Court judge, I interpret this asa judicial review of the April 9, 2010 bulletin issued by the Toronto PortAuthority and the conduct described in it.

[32] I shall examine each of the two bulletins and assess whether they, or theconduct described in them, affected Air Canada’s legal rights, imposed legalobligations, or caused Air Canada prejudicial effects.

(1) The first bulletin

[33] The first bulletin is entitled “TPA announces capacity assessment results forBilly Bishop Toronto City Airport, begins accepting formal carrier proposals.” Thisbulletin did five things, none of which, in reality, is attacked by Air Canada in its firstapplication for judicial review:

● It announced the results of a noise impact study and capacity assessment for the City Airport and stated that the Toronto Port Authority anticipated thatbetween 42 and 92 additional takeoff and landing slots would be available.


Nowhere in its application for judicial review of the bulletin does AirCanada attack this study or capacity assessment. Nowhere does it attack theToronto Port Authority’s assessment of the availability of takeoff andlanding slots.

● It announced that the Toronto Port Authority intended to solicit formal business proposals for additional airline service at the City Airport. In itsjudicial review of this bulletin, Air Canada does not attack this intention.

● It disclosed the appointment of a slot coordinator to allocate available takeoff and landing slots at the City Airport. Air Canada does not say in itsapplication for judicial review that the slot coordinator was improperlyappointed, should not have been appointed, was biased, or conducted itselfin some other inappropriate way.

● It stated that all airlines providing service from the City Airport will have to enter into a commercial carrier operating agreement with the Toronto PortAuthority and secure appropriate terminal space from the City CentreTerminal Corp. Air Canada does not attack this aspect of the bulletin in itsapplication for judicial review.

● It announced that further capital expenditures on the City Airport would be required to accommodate the additional air traffic. In its judicial review,AirCanada does not attack this aspect of the bulletin.

[34] In its first notice of application attacking this bulletin and the conduct describedin it, Air Canada set out the grounds for its attack. The grounds focus on the TorontoPort Authority’s alleged bias in favour of Porter. Air Canada says that the mattersdisclosed in the first bulletin perpetuate “Porter’s existing anti-competitive advantage”and prevent “meaningful competition,” something that is “contrary to the purposes ofthe Canada Marine Act and contrary to the common law.”Air Canada complainsabout“Porter’s exclusive access” to the City Airport and the “significant competitiveadvantages” offered by the City Airport compared to other airports in the Toronto area.It adds that when new takeoff and landing slots are awarded, Porter’s dominance at theCity Airport will be maintained – Porter will continue to enjoy a vast majority of theoverall number of takeoff and landing slots.

[35] But the first bulletin and the conduct described in it does not do any of thesethings. On the subject of takeoff and landing slots, the first bulletin only sets out aprocess for the allocation of new slots and an approximate number to be allocatedunder that process. In reality, Air Canada does not attack anything that the first bulletindoes or describes. Instead, Air Canada is really attacking the Toronto Port Authority’searlier allocation of takeoff and landing slots to Porter, an earlier decision that is notnow the subject of judicial review. As mentioned in paragraph 16, above, Air Canada’saffiliate, Jazz, attacked that matter and other allegedly monopolistic matters in 2006 byway of an action and judicial reviews, but it later discontinued and abandoned thoseproceedings.


[36] If Air Canada’s application for judicial review concerning the first bulletinwere granted and the matters described in the first bulletin were set aside, the pre-existing allocation of takeoff and landing slots to Porter – the matter that is the realfocus of its complaint – would remain. But in its notice of application Air Canada doesnot attack that pre-existing allocation of takeoff and landing slots to Porter.

[37] Therefore, the first bulletin and the matters described in it – the matters that AirCanada attacks in its first notice of application – do not affect Air Canada’s legalrights, impose legal obligations, or cause Air Canada prejudicial effects. This bulletinand the matters described in it are not the proper subject of judicial review. Othermatters may perhaps be causing prejudicial effects to Air Canada, but they are not thesubject of its first notice of application.

(2) The second bulletin

[38] The second bulletin is entitled “Toronto Port Authority issues formal Requestfor Proposals for additional carriers at Billy Bishop Toronto City Airport.” Thisbulletin did three things, none of which, in reality, is attacked by Air Canada in itssecond notice of application:

● It announced that two airlines, one of which was Air Canada, expressed informal interest in participating in the request for proposals for additionalairline service at the City Airport. It invited others to participate in therequest for proposal process.

● It appointed an independent party to review the proposals and allocate slots based on a methodology used at other airports.

● It announced results from a capacity assessment report and stated that, based on that report and the Tripartite Agreement, 90 new takeoff and landingslots could be made available.

[39] Again, in reality, Air Canada does not attack anything that the bulletin does.Nowhere in its second notice of application for judicial review does Air Canadasuggest that these things affect its legal rights, impose legal obligations, or causeprejudicial effects upon it.

[40] In its second notice of application, Air Canada states that this bulletinimplements the process that was proposed in the first bulletin. But, as we have seen,the process that was proposed in the first bulletin is not the real focus of Air Canada’sattack. Air Canada’s real focus is the pre-existing allocation of takeoff and landingslots, something over which Jazz launched challenges in 2006 but later abandoned.

[41] By the time of its second application for judicial review, Air Canada was awareof the allocation of takeoff and landing slots to Porter, set out in Porter’s 2010Commercial Carrier Operating Agreement. Its second notice of application alludes tothat agreement. But the second bulletin and the conduct described in it – the subject-matter of the second application for judicial review – do not mention or allude toPorter’s 2010 Commercial Carrier Operating Agreement. The second notice of


application does not seek review of the Toronto Port Authority’s decision to enter intothat agreement and allocate a significant number of takeoff and landing slots to Porter.

[42] Therefore, for the foregoing reasons, Air Canada’s two notices of applicationdo not attack any matter that affects Air Canada’s legal rights, impose legalobligations, or cause prejudicial effects. The notices of application did not place beforethe Federal Court any matter susceptible to review.

[43] This is sufficient to dismiss the appeal. However, I shall go on to consider twoother grounds relied upon by the Federal Court judge to dismiss Air Canada’sapplications for judicial review.

C. Was the Toronto Port Authority acting as a “federal board, commission orother tribunal” when it engaged in the conduct described in the bulletins?

(1) This is a mandatory requirement

[44] An application for judicial review under the Federal Courts Act can only bebrought against a “federal board, commission or other tribunal.”

[45] Various provisions of the Federal Courts Act make this clear. Subsection 18(1)of the Federal Courts Act vests the Federal Court with exclusive original jurisdictionover certain matters where relief is sought against any “federal board, commission orother tribunal.” In exercising that jurisdiction, the Federal Court can grant relief inmany ways, but only against a “federal board, commission or other tribunal”:subsection 18.1(3) of the Federal Courts Act. It is entitled to grant that relief where itis satisfied that certain errors have been committed by the “federal board, commissionor other tribunal”: subsection 18.1(4) of the Federal Courts Act.

(2) What is a “federal board, commission or other tribunal”?

[46] “Federal board, commission or other tribunal” is defined in subsection 2(1) ofthe Federal Courts Act. Subsection 2(1) tells us that only those that exercisejurisdiction or powers “conferred by or under an Act of Parliament” or “an order madepursuant to [Crown prerogative]” can be “federal boards, commissions or othertribunals”:

2. (1) In this Act,

“federal board, commission orother tribunal”

« office fédéral »

“federal board, commission orother tribunal” means any body,

person or persons having,

2. (1) Les définitions qui suivents’appliquent à la présente loi.

« office fédéral »“federal board, commission or

other tribunal”

« office fédéral » Conseil, bureau,commission ou autre organisme, oupersonne ou groupe de personnes,


exercising or purporting to exercisejurisdiction or powers conferred byor under an Act of Parliament or byor under an order made pursuant to

a prerogative of the Crown…

ayant, exerçant ou censé exercerune compétence ou des pouvoirsprévus par une loi fédérale ou par

une ordonnance prise en vertud’une prérogative royale…

[47] These words require us to examine the particular jurisdiction or power beingexercised in a particular case and the source of that jurisdiction or power:Anisman v.Canada (Canada Border Services Agency), 2010 FCA 52 (CanLII), 2010 FCA 52, 400N.R. 137.

[48] The majority of decided cases concerning whether a “federal board,commission or other tribunal” is present turn on whether or not there is a particularfederal Act or prerogative underlying an administrative decision-maker’s power orjurisdiction. Anisman is a good example. In that case the source of the administrativedecision-maker’s power was provincial legislation, and so judicial review under theFederal Courts Act was not available.

[49] In this case, all parties accept that the actions disclosed in the Toronto PortAuthority’s bulletins find their ultimate source in federal law.

[50] However, before us, the Toronto Port Authority submits that that alone is notenough to satisfy the requirement that an entity was acting as a “federal board,commission or other tribunal” when it engaged in the conduct or exercised the powerthat is the subject of judicial review. It has cited numerous cases to us in support of theproposition that the conduct or the power exercised must be of a public character. Anauthority does not act as a “federal board, commission or other tribunal” when it isconducting itself privately or is exercising a power of a private nature: see, forexample, DRL Vacations Ltd. v. Halifax Port Authority, 2005 FC 860 (CanLII), 2005FC 860, [2006] 3 F.C.R. 516; Halterm Ltd. v. Halifax Port Authority 2000 CanLII15516 (FC), (2000), 184 F.T.R. 16 (T.D.).

[51] The Toronto Port Authority’s submission has much force.

[52] Every significant federal tribunal has public powers of decision-making. Butalongside these are express or implied powers to act in certain private ways, such asrenting and managing premises, hiring support staff, and so on. In a technical sense,each of these powers finds its ultimate source in a federal statute. But, as the governingcases cited below demonstrate, many exercises of those powers cannot be reviewable.For example, suppose that a well-known federal tribunal terminates its contract with acompany to supply janitorial services for its premises. In doing so, it is not exercising apower central to the administrative mandate given to it by Parliament. Rather, it isacting like any other business. The tribunal’s power in that case is best characterized asa private power, not a public power. Absent some exceptional circumstance, thejanitorial company’s recourse lies in an action for breach of contract, not an applicationfor judicial review of the tribunal’s decision to terminate the contract.


[53] The Supreme Court has recently reaffirmed that relationships that are inessence private in nature are redressed by way of the private law, not public law:Dunsmuir v. New Brunswick,2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 S.C.R.190. In that case, a government dismissed one of its employees who was employedunder a contract governed by the ordinary laws of contract. The employee brought ajudicial review, alleging procedural unfairness. The Supreme Court held that in thecircumstances the matter was private in character and so there was no room for theimplication of a public law duty of procedural fairness.

[54] Recently, on the same principles but on quite different facts, the SupremeCourt found that a relationship before it was a public one and so judicial review wasavailable: Mavi, supra.

[55] A further basis for this public-private distinction can be found in subsection 18(1) of the Federal Courts Act which provides that the main remedies on review arecertiorari, mandamus and prohibition. Each of those is available only against exercisesof power that are public in character. So said Justice Dickson (as he then was) in thecontext of certiorari in Martineau v. Matsqui Institution Disciplinary Board, 1979CanLII 184 (SCC), [1980] 1 S.C.R. 602; see also R. v. Criminal InjuriesCompensation Board, Ex p. Lain, [1967] 2 Q.B. 864.

[56] The tricky question, of course, is what is public and what is private. InDunsmuirand in Mavi, the Supreme Court did not provide a comprehensive answer tothat question.

[57] Perhaps there can be no comprehensive answer. In law, there are certainconcepts that, by their elusive nature, cannot be reduced to clear definition. Forexample, in the law of negligence, when exactly does a party fall below the standard ofcare? We cannot answer that in a short sentence or two. Instead, the answer emergesfrom careful study of the factors discussed in many cases decided on their own facts.In my view, determining whether a matter is public or private for the purposes ofjudicial review must be approached in the same way.

[58] Further, it may be unwise to define the public-private distinction withprecision. The “exact limits” of judicial review have “varied from time to time” to“meet changing conditions.” The boundaries of judicial review, in large part set by thepublic-private distinction, have “never been and ought not to be specifically defined.”See the comments of Justice Dickson (as he then was) in Martineau,supra at page 617,citing Lord Parker L.J. in Lain, supraat page 882.

[59] While the parties, particularly the Toronto Port Authority, have supplied uswith many cases that shed light on the public-private distinction for the purposes ofjudicial review, only preliminary comments necessary to adjudicate upon this case arewarranted in these circumstances.

[60] In determining the public-private issue, all of the circumstances must beweighed: Cairns v. Farm Credit Corp., reflex, [1992] 2 F.C. 115 (T.D.); Jackson v.Canada (Attorney General)reflex, (1997), 141 F.T.R. 1 (T.D.). There are a number of


relevant factors relevant to the determination whether a matter is coloured with apublic element, flavour or character sufficient to bring it within the purview of publiclaw. Whether or not any one factor or a combination of particular factors tips thebalance and makes a matter “public” depends on the facts of the case and the overallimpression registered upon the Court. Some of the relevant factors disclosed by thecases are as follows:

● The character of the matter for which review is sought. Is it a private,commercial matter, or is it of broader import to members of the public? SeeDRL v. Halifax Port Authority, supra; Peace Hills Trust Co. v. Moccasin,2005 FC 1364 (CanLII), 2005 FC 1364 at paragraph 61, 281 F.T.R. 201(T.D.) (“[a]dministrative law principles should not be applied to theresolution of what is, essentially, a matter of private commercial law…”).

● The nature of the decision-maker and its responsibilities. Is the decision-maker public in nature, such as a Crown agent or a statutorily-recognizedadministrative body, and charged with public responsibilities? Is the matterunder review closely related to those responsibilities?

● The extent to which a decision is founded in and shaped by law as opposedto private discretion. If the particular decision is authorized by or emanatesdirectly from a public source of law such as statute, regulation or order, acourt will be more willing to find that the matter is public: Mavi,supra;Scheerer v. Waldbillig 2006 CanLII 6460 (ON SCDC), (2006), 208O.A.C. 29, 265 D.L.R. (4th) 749 (Div. Ct.); Aeric, Inc. v. Canada PostCorp., reflex, [1985] 1 F.C. 127 (T.D.). This is all the more the case if thatpublic source of law supplies the criteria upon which the decision is made:Scheerer v. Waldbillig, supra at paragraph 19; R. v. Hampshire Farmer’sMarkets Ltd., [2004] 1 W.L.R. 233 at page 240 (C.A.), cited with approvalin MacDonald v. Anishinabek Police Service 2006 CanLII 37598 (ONSCDC), (2006), 83 O.R. (3d) 132 (Div. Ct.). Matters based on a power toact that is founded upon something other than legislation, such as generalcontract law or business considerations, are more likely to be viewed asoutside of the ambit of judicial review: Irving Shipbuilding Inc, supra;Devil’s Gap Cottager (1982) Ltd. v. Rat Portage Band No. 38B, 2008 FC812 (CanLII), 2008 FC 812 at paragraphs 45-46,2008 FC 812 (CanLII),[2009] 2 F.C.R. 276.

● The body’s relationship to other statutory schemes or other parts ofgovernment. If the body is woven into the network of government and isexercising a power as part of that network, its actions are more likely to beseen as a public matter: Onuschuk v. Canadian Society of Immigration,2009 FC 1135 (CanLII), 2009 FC 1135 at paragraph 23, 357 F.T.R. 22;Certified General Accountants Association of Canada v. Canadian PublicAccountability Board2008 CanLII 1536 (ON SCDC), (2008), 233 O.A.C.129 (Div. Ct.); R. v. Panel on Take-overs and Mergers; Ex Parte Datafinplc., [1987] Q.B. 815 (C.A.); Volker Stevin N.W.T. (’92) Ltd. v. NorthwestTerritories (Commissioner), 1994 CanLII 5246 (NWT CA), [1994]N.W.T.R. 97, 22 Admin. L.R. (2d) 251 (C.A.); R. v. Disciplinary


Committee of the Jockey Club, ex parte Aga Khan, [1993] 2 All E.R. 853 atpage 874 (C.A.); R. v. Hampshire Farmer’s Markets Ltd., supra at page 240(C.A.). Mere mention in a statute, without more, may not be enough: Ripleyv. Pommier reflex, (1990), 99 N.S.R. (2d) 338, [1990] N.S.J. No. 295(S.C.).

● The extent to which a decision-maker is an agent of government or isdirected, controlled or significantly influenced by a public entity. Forexample, private persons retained by government to conduct aninvestigation into whether a public official misconducted himself may beregarded as exercising an authority that is public in nature: Masters v.Ontario reflex, (1993), 16 O.R. (3d) 439, [1993] O.J. No. 3091 (Div. Ct.). Arequirement that policies, by-laws or other matters be approved or reviewedby government may be relevant:Aeric, supra; Canadian Centre for Ethics inSport v. Russell, [2007] O.J. No. 2234 (S.C.J.).

● The suitability of public law remedies. If the nature of the matter is such thatpublic law remedies would be useful, courts are more inclined to regard it aspublic in nature: Dunsmuir, supra; Irving Shipbuilding,supra at paragraphs51-54.

● The existence of compulsory power. The existence of compulsory powerover the public at large or over a defined group, such as a profession, maybe an indicator that the decision is public in nature. This is to be contrastedwith situations where parties consensually submit to jurisdiction. See Chyzv. Appraisal Institute of Canada reflex, (1984), 36 Sask. R. 266 (Q.B.);Volker Stevin, supra; Datafin, supra.

● An“exceptional” category of cases where the conduct has attained a seriouspublic dimension. Where a matter has a very serious, exceptional effect onthe rights or interests of a broad segment of the public, it may bereviewable: Aga Khan, supra at pages 867 and 873; see also Paul Craig,“Public Law and Control Over Private Power” in Michael Taggart, ed., TheProvince of Administrative Law (Oxford: Hart Publishing, 1997) 196. Thismay include cases where the existence of fraud, bribery, corruption or ahuman rights violation transforms the matter from one of privatesignificance to one of great public moment: Irving Shipbuilding, supra atparagraphs 61-62.

(3) Application of these principles to the facts of this case

[61] In my view, the matters set out in the bulletins – the matters subject to reviewin this case –are private in nature. In dealing with these matters, the Toronto PortAuthority was not acting as a “federal board, commission or other tribunal.”

[62] While no one factor is determinative, there are several factors in this case thatsupport this conclusion.


–I –

[63] First, in engaging in the conduct described in the bulletins, the Toronto PortAuthority was not acting as a Crown agent.

[64] Section 7 of the Canada Marine Act provides that a port authority, such as theToronto Port Authority, is a Crown agent only for the purposes of engaging in portactivities referred to in paragraph 28(2)(a) of the Act. Those activities are “portactivities related to shipping, navigation, transportation of passengers and goods,handling of goods and storage of goods, to the extent that those activities are specifiedin the letters patent.” Port authorities can engage in“other activities that are deemed inthe letters patent to be necessary to support port operations” (paragraph 28(2)(b) of theAct) but, by virtue of section 7 of the Act, they conduct those activities on their ownaccount, not as Crown agents.

[65] The letters patent of the Toronto Port Authority draw a distinction betweenmatters on which it acts as a Crown agent and matters on which it does not. In section7.1, the letters patent set out what port activities under paragraph 28(2)(a) of theCanada Marine Act that the Toronto Port Authority may do –activities for which theToronto Port Authority is a Crown agent. In section 7.2, the letters patent set out allother activities that are necessary to support port operations – activities for which theToronto Port Authority acts on its own account, and not as a Crown agent.

[66] Subsection 7.2(j) of the letters patent is most significant. In that subsection, theToronto Port Authority is authorized to manage and operate the City Airport. For thispurpose, it is not a Crown agent. Subsection 7.2(j) reads as follows:

7.2 Activities of the AuthorityNecessary to Support PortOperations. To operate the port, theAuthority may undertake thefollowing activities which aredeemed necessary to support portoperations pursuant to paragraph 28(2)(b) of the Act:

…

(j) the operation and maintenanceof the Toronto City Centre Airportin accordance with the TripartiteAgreement among the Corporationof the City of Toronto, Her Majestythe Queen in Right of Canada andThe Toronto HarbourCommissioners dated the 30th dayof June, 1983 and ferry service,bridge or tunnel across the Western

7.2 Activités de l'Administrationnécessaires aux opérationsportuaires. Pour exploiter le port,l'Administration peut se livrer auxactivités suivantes jugéesnécessaires aux opérationsportuaires conformément à l'alinéa28(2)b) de la Loi:

[…]

j) exploitation et entretien del'aéroport du centre-ville deToronto conformément à l'accordtripartite conclu entre laCorporation of the City of Toronto,Sa Majesté la Reine du chef duCanada et les Commissaires duhavre de Toronto le 30 juin 1983,et service de traversier, pont outunnel au lieu dit Western Gapdans le port de Toronto pour


Gap of the Toronto harbour toprovide access to the TorontoCity Centre Airport.

permettre l'accès à l'aéroportdu centre-ville de Toronto;

[67] Air Canada submits that the allocation of takeoff and landing slots at the CityAirport is a matter relating to licensing federal real property, a matter that falls undersubsections 7.1(c), (e) and (f) of the letters patent. It submits that takeoff and landingslots are allocated by way of “licence.”Air Canada also submits that subsection 7.1(a),which provides for the “issuance…of authorizations respecting use…of the port,”embraces the granting of takeoff and landing slots. Accordingly, says Air Canada,when the Toronto Port Authority allocates takeoff and landing slots, it does so as aCrown agent.

[68] Air Canada is correct in saying that section 7.1 of the letters patent includes“licences” over “federal real property” and the issuance of “authorizations” for use ofthe port. Section 7.1 reads as follows:

7.1 Activities of the AuthorityRelated to Certain Port Operations.To operate the port, the Authoritymay undertake the port activities

referred to in paragraph 28(2)(a) ofthe Act to the extent specified

below:

(a) development, application,enforcement and amendment of

rules, orders, by-laws, practices orprocedures and issuance and

administration of authorizationsrespecting use, occupancy or

operation of the port andenforcement of Regulations or

making of Regulations pursuant to

subsection 63(2) of the Act;

…

(c) management, leasing orlicensing the federal real property

described in Schedule B ordescribed as federal real property in

any supplementary letters patent,subject to the restrictions

contemplated in sections 8.1 and 8.3

7.1 Activités de l'Administration liéesà certaines opérations portuaires.

Pour exploiter le port,l'Administration peut se livrer auxactivités portuaires mentionnées àl'alinéa 28(2)a) de la Loi dans la

mesure précisée ci-dessous:

a) élaboration, application, contrôled'application et modification de

règles, d'ordonnances, de règlementsadministratifs, de pratiques et de

procédures; délivrance etadministration de permis concernant

l'utilisation, l'occupation oul'exploitation du port; contrôle

d'application des Règlements ouprise de Règlements conformément

au paragraphe 63(2) de la Loi;

[…]

c) sous réserve des restrictionsprévues aux paragraphes 8.1 et 8.3,gestion, location ou octroi de permis

relativement aux immeublesfédéraux décrits à l'Annexe « B » ou

dans des lettres patentessupplémentaires comme étant des

immeubles fédéraux, à condition que


and provided such management,leasing or licensing is for, or inconnection with, the following:

(i) those activities described insections 7.1 and 7.2;

(ii) those activities described insection 7.3 provided suchactivities are carried on by

Subsidiaries or other third partiespursuant to leasing or licensing

arrangements;

(iii) the following uses to theextent such uses are not describedas activities in section 7.1, 7.2 or

7.3:

(A) uses related to shipping,navigation, transportation of

passengers and goods, handlingof goods and storage of goods;

(B) provision of municipalservices or facilities in

connection with such federalreal property;

(C) uses not otherwise withinsubparagraph 7.1(c)(iii)(A), (B)

or (D) that are described insupplementary letters patent;

(D) government sponsoredeconomic developmentinitiatives approved by

Treasury Board;

provided such uses are carried onby third parties, other than

Subsidiaries, pursuant to leasingor licensing arrangements;

…

la gestion, la location ou l'octroi depermis vise ce qui suit:

(i) les activités décrites auxparagraphes 7.1 et 7.2;

(ii) les activités décrites auparagraphe 7.3 pourvu qu'elles

soient menées par des Filiales oudes tierces parties conformémentaux arrangements de location ou

d'octroi de permis;

(iii) les utilisations suivantes dansla mesure où elles ne figurent pas

dans les activités décrites auxparagraphes 7.1, 7.2 ou 7.3 :

(A) utilisations liées à lanavigation, au transport des

passagers et des marchandises età la manutention et à

l'entreposage des marchandises;

(B) prestation de services oud'installations municipaux

relativement à ces immeublesfédéraux;

(C) utilisations qui ne sont pasprévues aux divisions 7.1c)(iii)(A), (B) ou (D) mais qui sont

décrites dans des lettres patentessupplémentaires;

(D) projets de développementéconomique émanant du

gouvernement et approuvés parle Conseil du Trésor;

pourvu qu'elles soient menées pardes tierces parties, à l'exceptiondes Filiales, conformément aux

arrangements de location oud'octroi de permis;

...

e) octroi d'emprises routières, deservitudes ou de permis pour des


(e) granting, in respect of federalreal property described in Schedule

B or described as federal realproperty in any supplementary

letters patent, road allowances oreasements, rights of way or licences

for utilities, service or access;

…

(p) carrying on activitiesdescribed in section 7.1 on realproperty other than federal real

property described in Schedule C ordescribed as real property other than

federal real property in anysupplementary letters patent;

provided that in conducting suchactivities the Authority shall notenter into or participate in any

commitment, agreement or otherarrangement whereby the Authority

is liable jointly or jointly andseverally with any other person for

any debt, obligation, claim orliability.

droits de passage ou d'accès ou desservices publics visant des

immeubles fédéraux décrits àl'Annexe « B » ou dans des lettrespatentes supplémentaires commeétant des immeubles fédéraux;

[...]

p) exécution des activités décritesau paragraphe 7.1 sur desimmeubles, autres que des

immeubles fédéraux, décrits àl'Annexe « C » ou décrits dans des

lettres patentes supplémentairescomme étant des immeubles autres

que des immeubles fédéraux;

pourvu que l'Administration nes'engage pas de façon conjointe ou

solidaire avec toute autre personne àune dette, obligation, réclamation ou

exigibilité lorsqu'elle prend unengagement, conclut une entente ou

participe à un arrangement dansl'exercice de ses activités.

[69] However, in my view, the licences and authorizations mentioned in section 7.1of the letters patent do not relate to takeoff and landing slots at the City Airport. Thegranting of takeoff and landing slots, even if they are legally considered to be thegranting of licences over federal real property, is an integral part of the operation of theCity Airport, a matter that is dealt with under section 7.2.

[70] The power to operate and maintain the City Airport in section 7.2 of the letterspatent is qualified by the words “in accordance with the Tripartite Agreement.”Among other things, that Agreement deals with the quantity and timing of takeoffs andlandings at the City Airport. As a matter of interpretation, section 7.2 explicitlyembraces the subject-matter of takeoffs and landings at the City Airport. Section 7.1cannot be interpreted to qualify or derogate from that subject-matter.

[71] I cannot interpret section 7.1 as somehow whittling down section 7.2 that vestsspecific power in the Toronto Port Authority to engage in “the operation andmaintenance of the Toronto City Centre Airport.” The normal rule of interpretation isthat a specific provision such as section 7.2prevails over a more general one such assection 7.1: Canada v. McGregor, [1989] F.C.J. No. 266, 57 D.L.R. (4th) 317 (C.A.).


[72] In any event, the bulletins do not grant any takeoff or landing slots. Fairlycharacterized, they announce studies, intentions and plans that concern the operationand maintenance of the City Airport. Takeoff and landing slots are granted underCommercial Carrier Operating Agreements.

–II –

[73] The private nature of the Toronto Port Authority is another factor leading me toconclude that the Toronto Port Authority was not acting as a “federal board,commission or other tribunal” in this case.

[74] As noted above, the Toronto Port Authority received letters patent. Onecondition of receiving letters patent was that the Toronto Port Authority was andwould likely remain“financially self-sufficient”: Canada Marine Act, paragraph 8(1)(a). Buttressing this condition is subsection 29(3) of the Act. It provides as follows:

29. (3) Subject to its letters patent,to any other Act, to any regulationsmade under any other Act and to

any agreement with theGovernment of Canada that

provides otherwise, a port authoritythat operates an airport shall do so

at its own expense.

29. (3) Sous réserve de ses lettrespatentes, des autres lois fédérales etde leurs règlements d’application ou

d’une entente contraire avec legouvernement du Canada,

l’administration portuaire quiexploite un aéroport doit le faire à ses

frais.

[75] Subsections 8(1) and 29(3) of the Canada Marine Act are indications that, inoperating and maintaining the City Airport under section 7.2 of the letters patent, theToronto Port Authority may pursue private purposes, such as revenue generation andenhancing its financial position. For the Toronto Port Authority, to a considerableextent, the matters discussed in the bulletins have a private dimension to them.

–III –

[76] I turn now to some of the other relevant factors commonly used in making thepublic-private determination for the purposes of judicial review. I mentioned these inparagraph 60, above.

[77] In no way can the Toronto Port Authority be said to be woven into the networkof government or exercising a power as part of that network. The Canada MarineActand the letters patent do the opposite.

[78] There is no statute or regulation that constrains the Toronto Port Authority’sdiscretion. There is no statute or regulation that supplies criteria for decision-makingconcerning the subject-matters discussed in the bulletins. Put another way, thediscretions exercised by the Toronto Port Authority that are evidenced in the bulletinsare not founded upon or shaped by law, but rather are shaped by the Toronto PortAuthority’s private views about how it is best to proceed in all the circumstances.


[79] There is no evidence showing that on the matters described in the bulletins, andindeed in its operation and maintenance of the City Airport, the Toronto Port Authorityis instructed, directed, controlled, or significantly influenced by government or anotherpublic entity. As well, there are no legislative provisions that would lead to any suchfinding of instruction, direction, control or influence.

[80] Finally, there is no evidence before this Court in this particular instance thatwould suggest that the matters described in the bulletin fall with the exceptionalcategory of cases where conduct has attained a serious public dimension or that thematters described in the bulletin have caused or will cause a very serious, exceptionaleffect on the rights or interests of a broad segment of the public, such that a public lawremedy is warranted.

[81] For the foregoing reasons, in engaging in the conduct described in the bulletinsin this instance, the Toronto Port Authority was not acting in a public capacity, as thatis understood in the jurisprudence. Therefore, judicial review does not lie in thesecircumstances.

D. Procedural fairness, reasonableness review and improper purpose

[82] Assuming for the moment that judicial review did lie in these circumstances,Air Canada submits that the“decisions” evidenced by the bulletins should be set asidefor want of procedural fairness. However, in the particular circumstances of this case,no duty of procedural fairness arose. Such duties do not arise where, as here, therelationship is private and commercial, not public: Dunsmuir, supra; see alsoparagraphs 61-81, above. In different circumstances, as explained above, an actiontaken by the Toronto Port Authority could assume a public dimension and proceduralduties could arise, but that is not the case here.

[83] Further, I find no reviewable error in the Federal Court judge’s rejection of AirCanada’s procedural fairness submissions and, in fact, substantially agree with hisreasons at paragraphs 86-95. In his reasons, the Federal Court judge rejected AirCanada’s submission that the Toronto Port Authority was obligated to follow theWorld Scheduling Guidelines promulgated by the International Air TransportAssociation. He also held that the Toronto Port Authority did not create any legitimateexpectation of consultation on the part of Air Canada, and that, in any event, AirCanada had made its views known fully to the Toronto Port Authority.

[84] Air Canada also submits that the“decisions” evidenced by the bulletins shouldbe set aside because they are unreasonable. The Federal Court judge rejected thissubmission. Again, I find no reviewable error in the reasons of the Federal Court judge(at paragraphs 96-101), and substantially agree with them. In this case, the actions ofthe Toronto Port Authority described in the bulletins were within the range ofdefensibility and acceptability.

[85] Air Canada also submits that the Toronto Port Authority pursued an improperpurpose. In its first notice of application, Air Canada describes this as “prefer[ring]Porter over new entrants and…perpetuat[ing] Porter’s significant anti-competitiveadvantage into the future.” Insofar as the bulletins and the conduct described in them


are concerned – the only matters that are the subject of the judicial reviews in this case– the Federal Court judge stated that “[t]here is no evidence…to suggest that [theToronto Port Authority] and Porter were doing anything more than engaging innormal, reasonable commercial activity.” There is nothing to warrant interferencewith that factual finding. Therefore, I find no reviewable error in the Federal Court’sjudge’s rejection of Air Canada’s submissions on improper purpose. To the extent thatAir Canada considers that the bulletins, the conduct described in them, other matters orany or all of these things have resulted in damage to competition, it has its recoursesunder the Competition Act.

E. Proposed disposition

[86] For the foregoing reasons, I would dismiss the appeal with costs.

"David Stratas"

J.A.

REASONS CONCURRING IN THE RESULT (Létourneau and Dawson JJ.A.)

[87] We have read the reasons now received from our colleague Stratas J.A. Weconcur with his proposed disposition.

"Gilles Létourneau"

J.A.

"Eleanor R. Dawson"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-355-10

APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICEHUGHES DATED JULY, 21, 2010

STYLE OF CAUSE: Air Canada v. Toronto PortAuthority and PorterAirlines Inc.

PLACE OF HEARING: Toronto, Ontario


DATE OF HEARING: June 6, 2011

REASONS FOR JUDGMENT BY: Stratas J.A.

REASONS CONCURRING IN THE RESULT BY: Létourneau and DawsonJJ.A.

DATED: December 12, 2011

APPEARANCES:

Neil FinkelsteinSarit E. BatnerBrandon KainByron Shaw

FOR THE APPELLANT

Peter K. DoodyColleen M. ShannonChristaan A. Jordaan

Robert L. ArmstrongOrestes PasparakisGreg SheahanNicholas Daube

FOR THE RESPONDENT,TORONTO PORTAUTHORITY

FOR THE RESPONDENT,PORTER AIRLINES INC.

SOLICITORS OF RECORD:

McCarthy Tétrault LLPToronto, Ontario

FOR THE APPELLANT

Borden Ladner Gervais LLPOttawa, Ontario

Norton RoseToronto, Ontario

FOR THE RESPONDENT,TORONTO PORTAUTHORITY

FOR THE RESPONDENT,PORTER AIRLINES INC.


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Air Canada v. Toronto Port Authority Et Al, 2011 FCA 347 ... · Air Canada has not brought an application for judicial review of that decision. CanLII - 2011 FCA 347 (CanLII) B. Did